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HQ 229257




January 10, 2002

LIQ-15
RR:CR:DR 229257 IDL

CATEGORY: HARBOR MAINTENANCE FEE

Port Director of Customs
Protest Officer
610 Ash Street
San Diego, CA 92188

RE: Protest No. 2501-95-100066; Harbor Maintenance Fees; 19 U.S.C. 1514; 28 U.S.C.S. 1581(i)

Dear Sir or Madam:

This is in reply to your correspondence dated August 1, 2001, concerning Hartog Trading Corp. (“Hartog”) (Protest No. 2501-95-100066).

FACTS:

Hartog protests Customs’ collection of a Harbor Maintenance Fee on Entry No. 853-xxxx8285, Apple Juice, Concentrated, Other, 2009.70.0020 HTSUS, entered on May 11, 1995, at San Diego, California. On May 22, 1995, Hartog paid HMF (0.125%) at the port of San Ysidro, in the amount of $207.94.

Hartog raises the claim that the “statute authorizing the assessment of Harbor Maintenance Fee violates” the Export Clause of the United States Constitution, which declares that “No tax or Duty shall be paid on Articles exported from any State.” U.S. Constitution, Article I, Section 9, Clause 5. Therefore, Hartog asserts, “any exaction made thereunder is, unlawful and all HMF should be refunded.”

ISSUE:

Whether Customs can grant a protest on the basis of an alleged unconstitutional act of Congress?

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed under the statutory and regulatory provisions for protests (see 19 U.S.C. § 1514 and 19 CFR Part 174). The entry was liquidated on August 25, 1995, and the subject protest was filed on October 17, 1995.

The protest is directed against the constitutionality of the Harbor Maintenance Fee. As an administrative agency, however, Customs lacks the authority to determine whether a Congressional enactment is constitutional. The issue of whether the laws of Congress are constitutional is reserved for the courts. HQ 228931.

Further, Hartog’s arguments ignore the prerequisite to the protest process set forth under 19 U.S.C. § 1514. Congress, and not Customs, has set the time of imposition and the amount of the tax. Customs’ actions are merely ministerial in nature. Although Customs had discretion to decide whether it is able to refund payments of the tax, such discretion is limited and does not extend to determinations of constitutionality. United States Shoe Corp. v. United States, 19 C.I.T. 1284 (1995); 114 F.3d 1564 (Fed. Cir. 1997); United States v. United States Shoe Corp., 523 U.S. 360; 118 S. Ct. 1290 (1998).

The Court also agreed that under 28 U.S.C.S. 1581(i)(4), the United States Court of International Trade (CIT) has exclusive jurisdiction over controversies regarding the administration and enforcement of the Harbor Maintenance Tax. (See also 26 USCS 4461 and 4462).

28 U.S.C.S. 1581
(i) In addition to the jurisdiction conferred upon the Court of International Trade by subsections (a)-(h) of this section and subject to the exception set forth in subsection (j) of this section, the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for-- (1) revenue from imports or tonnage;
(2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue; (3) embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or (4) administration and enforcement with respect to the matters referred to in paragraphs (1)-(3) of this subsection and subsections (a)-(h) of this section. 28 U.S.C.S. 1581(i)

Nevertheless, the language contained in the CF 19, coupled with the notable absence of any export documentation, suggests that Hartog is protesting a HMF that was imposed by reason of importation, rather than exportation. To the extent that the claim of unconstitutionality of the tax on import shipments is based on the concept of unseverability of the export tax portion of the statute, that claim has been rejected by the courts. Carnival Cruise Lines v. U.S., 929 F. Supp. 1570, 20 CIT 704 (1996); Florida Sugar Mktg. and Terminal Ass’n v. U.S., 220 F.3d 1331 (2000) (Certiorary denied).

In any event, as discussed above, Customs is powerless to correct the alleged constitutional infirmities raised by Hartog. Customs has not made a decision with respect to the tax upon which a valid or meaningful protest may be based.

HOLDING:

Accordingly, the Protest should be DENIED for the above reasons.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John A. Durant
Director,

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